NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL PACHECO-MIRANDA, No. 14-70296
Petitioner, Agency No. A077-395-812
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of a Decision of the
Department of Homeland Security
Argued and Submitted July 10, 2017
Portland, Oregon
Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,** District
Judge.
Challenges to the reinstatement of a prior removal order come in various
forms. They may directly attack the reinstatement decision, in which case
appellate review is limited to the factual predicates for reinstatement as defined in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
regulation. Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1137 (9th
Cir. 2008); see also 8 C.F.R. § 241.8(a). They may collaterally attack the
underlying removal order, in which case appellate review is further constrained.
See Villa-Anguiano v. Holder, 727 F.3d 873, 877-78 (9th Cir. 2013); Garcia de
Rincon, 539 F.3d at 1139. Or they may attack the process by which the
reinstatement decision was reached. See Morales de Soto v. Lynch, 824 F.3d 822,
825 (9th Cir. 2016). In this third category of cases, the petitioner is not seeking a
different outcome on the merits of reinstatement. He is instead seeking a revised
process for evaluating the merits, in the hope that the Department of Homeland
Security (“DHS”) might, on remand, exercise its discretion differently – either by
referring the petitioner to a formal removal hearing before an immigration judge,
or by declining to institute proceedings entirely. See, e.g., Villa-Anguiano, 727
F.3d at 878-79, 882.
Miguel Pacheco-Miranda, a Mexican national, has filed a petition for review
that falls into this third category. He does not challenge the factual predicates
supporting his January 29, 2014 reinstatement decision. Nor does he challenge his
underlying 1998 removal order. Instead, he argues that due process required DHS
to take into account the possibility that his presence in federal custody was the
product of a traffic stop by a local police officer that was prolonged to investigate
his immigration status – conduct so clearly contrary to Ninth Circuit precedent that
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it constituted an “egregious” Fourth Amendment violation. See, e.g., Melendres v.
Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012). As the theory goes, because an
egregious Fourth Amendment violation would affect ordinary removal proceedings
before an immigration judge, it might also alter DHS’s thinking on whether to
pursue reinstatement of a prior removal order, even if the three factual predicates
for reinstatement – identity, prior removal, and unlawful reentry – are undisputed.
For this proposition, Pacheco-Miranda invokes our decision in Villa-Anguiano,
where we remanded a reinstatement decision on due process grounds. 727 F.3d at
881 (“Due process . . . entitles an unlawfully present alien to consideration of
issues relevant to the exercise of an immigration officer’s discretion.”).
Pacheco-Miranda appears to be right on at least one point. Based on the
admittedly limited record before us, it appears Pacheco-Miranda came into the
custody of federal immigration officials through the unconstitutional conduct of an
officer of the Sidney Police Department. The apparent Fourth Amendment
violation may also have been “egregious” as this Court has defined that term. See
Orhorhaghe v. I.N.S., 38 F.3d 488, 493 (9th Cir. 1994). And DHS officials may
even have aided in the constitutional violation. However, even assuming an
egregious Fourth Amendment violation, Villa-Anguiano does not require a remand
in this case.
In Villa-Anguiano, DHS failed to account for a district court decision calling
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into question the validity of the petitioner’s underlying removal order. Villa-
Anguiano, 727 F.3d at 876-77. That error prevented DHS from evaluating the
factual predicates for removal with an accurate understanding of the relevant
evidence, and deprived the petitioner of a meaningful opportunity to make a
statement on his behalf. Id. at 880-81. We therefore concluded that remand was
necessary to give full effect to the regulation governing reinstatement. Id. at 881
(“For the requirements of [the reinstatement regulation] to function as the requisite
‘procedural safeguards’ of the alien’s right to due process in the context of
streamlined proceedings, they must apply at the relevant time.” (citation omitted));
see also Ponta-Garcia v. Attorney Gen. of U.S., 557 F.3d 158, 165 (3d Cir. 2009).
This case does not present a similar problem. Pacheco-Miranda has not
connected the apparent Fourth Amendment violation to the decision to reinstate
except in the most atmospheric sense. He does not claim that the Fourth
Amendment violation calls into question any of the factual predicates for
reinstatement.1 He does not claim that the Fourth Amendment violation somehow
denied him an opportunity to make a statement on his behalf. And although his
opening brief draws an extended analogy to the use of the exclusionary rule in
ordinary removal proceedings, he does not seek to exclude evidence of his
1
The government conceded at oral argument that a Fourth Amendment violation
calling into question a factual predicate for reinstatement would require a different
result.
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statements to DHS. See also United States v. Ortiz-Hernandez, 427 F.3d 567, 577
(9th Cir. 2005). Nothing about Pacheco-Miranda’s Fourth Amendment violation
bears on the reinstatement process that this Court has already declared
constitutionally sufficient on its face. See Morales-Izquierdo v. Gonzales, 486
F.3d 484, 496 (9th Cir. 2007) (en banc). Due process therefore does not require a
remand.2 Pacheco-Miranda may well be able to invoke the alleged Fourth
Amendment violation in a section 1983 action against the officers responsible for
violating his constitutional rights. But he may not invoke it to obtain
reconsideration of the reinstatement decision.
PETITION FOR REVIEW DENIED.
2
That DHS has issued guidance that may call for the exercise of prosecutorial
discretion in cases such as this does not affect the analysis. DHS’s guidance does
not create substantive rights. James v. U.S. Parole Comm’n, 159 F.3d 1200, 1206
(9th Cir. 1998). And while it is unclear what value the government sees in
reinstating removal against a man with three U.S.-citizen children, no criminal
record (notwithstanding his illegal reentry), and a possible path to adjustment of
status, this Court lacks jurisdiction to review DHS’s decision to initiate
reinstatement proceedings in lieu of some lesser alternative. 8 U.S.C. § 1252(g).
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